IN THE COURT OF APPEALS OF IOWA
No. 20-1116 Filed November 23, 2021
VALERIE RHEEDER, Plaintiff-Appellee,
vs.
CITY OF MARION, IOWA, DOUGLAS SLAGLE, SHELLENE GRAY, and JOSEPH McHALE, Defendants-Appellants. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
Judge.
The defendants appeal interlocutory a discovery order in a sexual
harassment and retaliation suit. AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.
Amy L. Reasner and Holly A. Corkery of Lynch Dallas, P.C., Cedar Rapids,
for appellants City of Marion and Joseph McHale.
Bridget R. Penick and Olivia N. Norwood of Fredrikson & Byron, P.A., Des
Moines, for appellant Douglas Slagle.
Michele L. Brott and Kacy L. Flaherty-Tarpey of Dentons Davis Brown, P.C.,
Des Moines, for appellant Shellene Gray.
Ann E. Brown of Ann Brown Legal PC, Cedar Rapids, for appellee. 2
Considered by Vaitheswaran, P.J., Schumacher, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 3
BLANE, Senior Judge.
Valerie Rheeder is a former employee of the City of Marion. She sued the
city and several of its employees (collectively the city) for sexual harassment and
violation of the Iowa Civil Rights Act during her employment. In this interlocutory
appeal, the city challenges a discovery order requiring it to turn over a redacted
portion of an investigatory report prepared by an attorney regarding Rheeder’s
allegations of sexual harassment. Rheeder argues the city is obligated to disclose
the full, unredacted investigatory report to be able to use it in support of its
Faragher-Ellerth affirmative defense.
We find the district court abused its discretion in ordering the entire report
disclosed to Rheeder. A limited portion of the redacted pages is discoverable as
relevant to Rheeder’s claims. The city has not waived its privilege as to the
remainder. Thus, we remand to the district court to allow the city to decide if it will
rely on the investigative report as part of its defense.
I. BACKGROUND FACTS AND PROCEDINGS
Valerie Rheeder worked as a part-time custodian for the Marion Police
Department starting in August 2018. About a year later, she filed this lawsuit
alleging Deputy Police Chief Douglas Slagle sexually harassed her. She claimed
that when she reported his conduct, Chief of Police Joseph McHale carried out an
inadequate investigation before formally concluding Slagle had not sexually
harassed her. McHale informed city administrators of Rheeder’s complaint and
that he had taken care of it.
Rheeder’s petition also asserted the city retaliated against her for making
the sexual harassment complaint. McHale gave her a written warning for her 4
communications with Slagle. She also contends that Administrative Manager
Shellene Gray confronted and threatened her about the sexual harassment
complaint.
A month or so after her complaint, Rheeder heard that the city had received
multiple allegations of sexual harassment against Slagle before he sexually
harassed her as well as a new complaint from another individual. She also learned
the department planned a second investigation to be conducted by someone
outside the department. The city hired attorney Frances Haas to investigate
Rheeder’s complaint and possible disparate treatment within the police
department. Attorney Haas conducted her investigation and submitted to the city
a confidential report (Haas report). The department placed Rheeder on leave
during the investigation. When she returned to her position, Gray was still her
manager. Rheeder complained she was not comfortable working with Gray, and
the city conducted another investigation of Gray’s conduct. The city then allowed
Gray to return to her position. Rheeder quit her job shortly afterward and filed this
suit.
Rheeder’s petition includes claims of sexual harassment and violations of
the Iowa Civil Rights Act1 by the city, Slagle, and Gray. Later, Rheeder amended
1 The Iowa Civil Rights Act provides: It shall be an unfair or discriminatory practice for any . . . [p]erson to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability of such applicant or employee, unless based upon the nature of the occupation. Iowa Code § 216.6 (2019). 5
her petition to include McHale in her Civil Rights Act claims. In its answer, the city
broadly denied the allegations. It also stated “the [c]ity promptly investigated all of
[p]laintiff Rheeder’s claims and promptly responded to all of [p]laintiff Rheeder’s
claims. The [c]ity denies [p]laintiff Rheeder’s claim it ignored ‘sexually harassing
conduct for years.’” It specifically answered:
. . . Defendants City and McHale promptly investigated all of Plaintiff Rheeder’s claims asserted while employed and, where appropriate within the City’s business judgment, provided prompt remedial measures reasonably calculated to remedy Plaintiff Rheeder’s claims. .... . . . Even if a City employee committed any actionable wrongful acts, which has been and is denied, Defendants City and McHale exercised reasonable care to prevent such acts and Plaintiff Rheeder unreasonably failed to take advantage of the preventative and/or corrective opportunities the City offered in its written policies.
The city thus asserted what is known as a Faragher-Ellerth affirmative defense.2
This “two-part defense requires employers to show reasonable care was exercised
to ‘prevent and correct promptly any . . . harassing behavior’ and to further show
the claimant employee ‘unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer.’” Fenceroy v. Gelita USA.,
Inc., 908 N.W.2d 235, 242 (Iowa 2018) (quoting Farmland Foods, Inc. v. Dubuque
Human Rights Comm’n, 672 N.W.2d 733, 744 n.2 (Iowa 2003) (adopting the
defense)). The policy of the affirmative defense is to “encourage[] employers to
prevent workplace discrimination and harassment by adopting antidiscrimination
policies and complaint procedures or by taking other suitable action.” Id. In
2That term is based upon United States Supreme Court cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 6
Fenceroy, the supreme court addressed the question of privilege, holding “that an
employer who relies on a presuit investigation to support a Faragher-Ellerth
affirmative defense waives attorney–client privilege when the investigation is
conducted by an attorney.” Id.
Following Rheeder’s discovery requests, the city produced only a redacted
copy of the Haas report to Rheeder.3 The city redacted information it asserted was
not relevant to Rheeder’s complaint. The city also sought a protective order to
prevent disclosure of the redacted information, roughly the last seven pages of the
thirty-four page report and a few items from its Appendix A and Appendix B.
Rheeder resisted the protective order and moved to compel disclosure of the full,
unredacted Haas report.4
The city resisted, insisting the Haas report included investigation of
separate matters unrelated to Rheeder’s claims. It cited Rheeder’s discovery
request for “[a] complete copy of the investigative report of Frances Haas regarding
3 The confidential report consists of 34 typed pages, page 35 – Appendix A (list of interviewed persons and their positions), and page 36 – Appendix B (list of documents reviewed and source). The city produced the first 26 pages, one-half of page 27 and redacted the bottom portion of page 27 through page 34. The city also redacted the list of names in Appendix A on page 35 and four of the documents and sources listed in Appendix B on page 36. For purposes of this appeal, we have been provided an unredacted copy of the full confidential report provided to the district court and reviewed in camera before issuing its order of production. 4 As to the Haas report, the motion states:
Plaintiff is entitled to an unredacted version of Attorney Fran Haas’s report. In the event that the Court determines that portions of the report are privileged, Plaintiff is still entitled to discovery relating to the identity of the complainant who contacted the City regarding the sexual harassment of Plaintiff and all documents and information relating to the nature of this person’s complaint. 7
Valerie Rheeder’s complaint of sexual harassment [and] retaliation.” The city
argued,
[T]he plain language of the request does not encompass the second half of the report; the second half of the report is attorney client privileged and such privilege has not been waived; and the second half of the report is not relevant to Ms. Rheeder’s claims nor reasonably calculated to lead to the discovery of admissible evidence.
According to the city, “[b]y framing her request as she did, the Plaintiff herself
acknowledges this information is all that she is due.” The city also claimed only to
have placed in issue that part of the report necessary to its defense, so it “only
waived its attorney client privilege regarding Ms. Haas’ report with respect to Ms.
Rheeder’s claims and her lawsuit.” Therefore, according to the city, the
pronouncement of Fenceroy—cited by Rheeder—did not apply to the redacted
text. See Fenceroy, 908 N.W.2d at 242. Further, it argued, “[t]here is no authority
for Plaintiff’s position that the [city’s] waiver of attorney-client privilege with respect
to the investigation and report related to Plaintiff’s claims causes other, attorney
client privileged investigations to lose their privilege.”
The court ordered the city to submit the entire Haas report for an in camera
review. After the in camera review and a hearing on the matter, the court denied
the city’s request for a protective order as to the redacted portions and granted
Rheeder’s motion to compel, ordering the city to give her the full report. In doing
so, the court noted, “The question . . . is not whether the discovery sought by
Plaintiff includes information that will be admissible at trial; rather the question is
whether the information is discoverable.” Citing Fenceroy, the court held:
Plaintiff is entitled to the full and complete copy of Ms. Haas’ report. Defendants have not proven that this document is privileged, 8
and have waived any privilege they had for this document by their plan to use the investigation and report to support their defense to Plaintiff’s claims. If Defendants intend to use the report to support their affirmative defense, Plaintiff may not be kept from disputing all of the evidence in the report.
The city filed for interlocutory review. The supreme court granted the
application and transferred the case to us.
II. SCOPE OF REVIEW
We review the district court’s rulings on discovery for abuse of discretion.
Struve v. Struve, 930 N.W.2d 368, 277 (Iowa 2019). “In reviewing decisions
regarding discovery, we give the district court wide latitude.” Id. The district court
abuses its discretion when its decision is based on grounds that are “clearly
untenable or unreasonable.” Mitchell v. City of Cedar Rapids, 926 N.W.2d 222,
227 (Iowa 2019) (citation omitted). “A ruling based on an erroneous interpretation
of a discovery rule can constitute an abuse of discretion.” Id. (quoting Mediacom
Iowa, L.L.C. Inc. v. City of Spencer, 682 N.W.2d 62, 66 (Iowa 2004)).
III. ANALYSIS
We begin with the relevant principles of discovery and evidence.
“[T]he law favors full access to relevant information.” Mediacom Iowa,
L.L.C., 682 N.W.2d at 66 (citation omitted). The idea is that “litigants are entitled
to every person’s evidence” in the case. Id. (citation omitted). “Thus, the district
court should liberally construe our discovery rules.” Id. Parties are entitled to
discovery
regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other 9
tangible things, the identity and location of persons having knowledge of any discoverable matter, and the identity of witnesses the party expects to call to testify at the trial. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Iowa R. Civ. P. 1.503(1).
Still, in general terms, privileged material is not discoverable. The rule
provides: “Parties may obtain discovery regarding any matter, not privileged.” Iowa
R. Civ. P. 1.503(1) (emphasis added). “[A] party is entitled to discover any
information that is not privileged and that is relevant to the subject matter of the
lawsuit.” Mediacom Iowa, L.L.C., 682 N.W.2d at 66. In other words, a party may
not discover privileged information unless there is a clear exception. “A party
resisting discovery through assertion of a privilege has the burden of showing that
a privilege exists and applies.” Exotica Botanicals, Inc. v. Terra Intern’l, Inc., 612
N.W.2d 801, 804 (Iowa 2000). “An asserted privilege is narrowly construed
because it is an exception to our rules governing discovery.” Id.
There are “avenues available to those who wish to resist discovery.”
Mediacom Iowa, L.L.C., 682 N.W.2d at 66. The one relevant here is a protective
order under Iowa Rule of Civil Procedure 1.504. See id. at 66–67 Relevance is
also a significant factor in discovery. Iowa Rule of Evidence 5.401 provides,
“Evidence is relevant if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence; and . . . the fact is of consequence
in determining the action.”
With that backdrop, we turn to the city’s specific objections to Rheeder’s
discovery request. 10
A. Rheeder’s discovery request
The city argues that Rheeder’s discovery request was limited to evidence
related to her sexual harassment and retaliation claims and does not encompass
the redacted portions of the confidential report. Rheeder requested “[a] complete
copy of the investigative report of Frances Haas regarding Valerie Rheeder’s
complaint of sexual harassment [and] retaliation.” And the district court ruled that
Rheeder was entitled to “the full and complete copy of Ms. Haas’ report.” After
finding that the city had not proven the document was privileged and had waived
any privilege by its plan to use the investigation and report to support its affirmative
defense, the court concluded: “If [the city] intend[s] to use the report to support [its]
affirmative defense, [Rheeder] may not be kept from disputing all of the evidence
in the report.” (Emphasis added.)
We recall that to establish the Faragher-Ellerth affirmative defense, the
employer must show it “(1) exercised reasonable care to prevent and correct
promptly any . . . harassing behavior, and (2) that the plaintiff employee
unreasonably failed to take advantage of preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Farmland Foods, Inc., 672
N.W.2d at 744 n.2. And “an employer who relies on a presuit investigation to
support a Faragher-Ellerth affirmative defense waives attorney-client privilege
when the investigation is conducted by an attorney.” Fenceroy, 908 N.W.2d at
244. Assuming the city waived its privilege over the entire Haas report, the second
part would be discoverable under general discovery rules if it is “relevant to the
subject matter involved in the pending action.” Iowa R. Civ. P. 1.503(1).
Relevancy in the context of discovery is different from relevancy for admissibility— 11
the rule itself says inadmissibility “is not ground for objection . . . if the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence.” Id.; see also Fagen v. Grand View Univ., 861 N.W.2d 826, 833 (Iowa
2015) (“In other words, relevancy to the subject matter of a lawsuit is broader than
relevancy to an issue specifically pled, because the rule permits a party to discover
inadmissible information as long as the request is reasonably calculated to lead to
the discovery of admissible evidence.”).
First, addressing the city’s contention Rheeder did not request the redacted
information, we do not read Rheeder’s discovery request as narrowly as the city
does. She requested a “complete” copy of the investigation into her claims. We
find no abuse of discretion in the court’s conclusion that Rheeder’s original request
encompassed the entire investigation report. Second, our job is to determine
whether the district court abused its discretion in concluding the city waived its
privilege over the redacted pages by determining they were relevant to the matters
in her action. To answer that, we turn to the question of the city’s waiver. 5
5 The city argues the district court abused its discretion by finding the redacted part of the Haas report was not privileged or that the city waived the privilege. It argues: The City and Mr. McHale have at all times asserted that the second part of the Investigation Report is attorney-client privileged, that the privilege was never waived, that they did not “inject” the second part of the Investigation Report into the case and, in any event, the second part of the Investigation Report is not relevant to Ms. Rheeder’s case. Iowa Code section 622.10(1)(2019) creates the attorney-client privilege. Our law recognizes that a “confidential communication between an attorney and the attorney’s client is absolutely privileged from disclosure against the will of the client.” Fenceroy, 903 N.W.2d at 242–43 (citing Shook v. City of Davenport, 497 N.W.2d 883, 886 (Iowa 1993), abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 48 (Iowa 2004)). It is undisputed that Frances Haas is an attorney retained by the city to investigate Rheeder’s and possibly others’ harassment or discrimination 12
B. Waiver.
In Fenceroy, the supreme court discussed how the assertion of the
Faragher-Ellerth affirmative defense impacts discovery of a confidential attorney
investigation relied upon and to be offered into evidence by the defense.6
Normally, the process of an investigation into a complaint is at issue when the Faragher-Ellerth defense is asserted, “including what the employer knew of the employee’s complaints and when.” When an employer affirmatively relies on the reasonableness of its investigation to support the defense, “[t]he only way that Plaintiff, or the finder of fact, can determine the reasonableness of the Defendant’s investigation is through full disclosure of the contents” of the investigation. In order to adequately challenge a Faragher- Ellerth affirmative defense, plaintiff must be permitted to probe the nature and scope of the relied upon investigation. It would be fundamentally unfair to allow an employer to shield material facts from discovery simply by hiring the same attorney who conducted a presuit investigation to represent the employer in the subsequent civil action. The key element behind this authority is that the Faragher- Ellerth defense must not only be pled, but the employer must then rely on the attorney’s investigation into plaintiff’s discrimination allegations in proving the defense. When the reasonableness of the investigation into the allegations is relied upon as a defense, the contents of the investigation are placed into issue and become subject to disclosure.
Fenceroy, 908 N.W.2d at 244 (citations omitted).
The city agrees it affirmatively pled the Faragher-Ellerth defense and
intends to rely on the Haas report as evidence supporting the defense but only to
complaints. The report states on its face: “CONFIDENTIAL—ATTORNEY- CLIENT PRIVILEGE, ATTORNEY WORK PRODUCT.” Although such a label does not automatically render the document privileged, our review confirms the attorney-client relationship and that the confidential report is privileged under the statute. The district court’s finding that the report, particularly that redacted, was not privileged was clearly in error. 6 The affirmative defense allows an employer to avoid vicarious liability when it
responsibly acts to prevent workplace harassment or discrimination, as long as the claim does not involve tangible employment action. 13
the extent the report relates to Rheeder; that portion which it has produced. The
city takes issue with the court’s ruling for two reasons. First, that it never waived
privilege as to the redacted portion of the report dealing with disparate treatment.
And second, that it never put the redacted part of the report into issue because it
did not intend to rely on that portion to support its affirmative defense.
Rheeder counters there is no authority to support the argument that the city
can sever the allegedly unrelated parts of the investigative report for discovery
purposes. She argues that by asserting an affirmative defense it exercised
“reasonable care . . . to ‘prevent and correct promptly any . . . harassing
behavior,’” the city put Haas’ investigatory efforts into issue in the case. Id. (citation
omitted).
Generally, under Fenceroy, discovery of the otherwise confidential report is
required and imposes implied waiver because it is the “only way that
[Rheeder] . . . can determine the reasonableness of the [city’s] investigation.” Id.
“In order to adequately challenge a Faragher-Ellerth affirmative defense, plaintiff
must be permitted to probe the nature and scope of the relied upon investigation.”
Id. “When the reasonableness of the investigation into the allegations is relied
upon as a defense, the contents of the investigation are placed into issue and
become subject to disclosure.” Id. “[A] basic component of a fair trial requires that
when a party injects a legal issue into a lawsuit, the opposing party is entitled to
discover the relevant evidence concerning the issue.” Id. at 234.
But those general principles have some limitations. In Fenceroy, our
supreme court cited favorably to several cases that provide guidance on this issue.
In Harding v. Dana Transport, Inc., “the adequacy or reasonableness of the 14
investigation was the relevant fact injected into the lawsuit by the defendant, which
made the content of the investigation relevant.” 914 F. Supp. 1084, 1096 (D.N.J.
1996) (emphasis added). Thus, the court must decide if particular content of the
report is relevant and must be produced. See EEOC v. Outback Steakhouse of
Fla., Inc., 251 F.R.D. 603, 612 (D. Colo. 2008) (“The Court agrees that to the extent
defendants have asserted the Faragher/Ellerth affirmative defense, they have
waived the protections of the attorney-client privilege and work product regarding
investigations into complaints made by female employees.” (emphasis added)). In
Walker v. Cnty. of Contra Costa, 227 F.R.D. 529, 535 (N.D. Cal. 2005), the court
emphasized that only similar complaints of sexual harassment to that raised in
plaintiff’s case are within the waiver and discoverable. “If Defendants assert as an
affirmative defense the adequacy of their pre-litigation investigation into Walker’s
claims of discrimination, then they waive the attorney-client privilege and the work
product doctrine with respect to documents reflecting that investigation.” Id.
(emphasis added). Again, the implied waiver is only related to the investigation
that pertains to the particular claim. The parties also cite us to Koss v. Palmer
Water Department, 977 F. Supp. 2d 28, 29–30 (D. Mass. 2013). In that case, the
court found that even though the assertion of the Faragher-Ellerth affirmative
defense waived the attorney-client privilege and work-product protection for the
bulk of the documents submitted, after an in camera review, some redactions were
nonetheless appropriate.
We find based on these cases that, contrary to Rheeder’s assertion, the
implied waiver does not automatically render the entire confidential report
discoverable by Plaintiff. When the city claims the non-produced portion of the 15
report is not relevant and should still be considered privileged, the court in
conducting an in camera review must decide if the redacted portion of the report
is relevant to Rheeder’s claim, or similar claims involving the alleged harasser, or
necessary for Rheeder or the trier of fact to challenge or evaluate the adequacy
and reasonableness of the investigation.
The district court found that “Plaintiff is entitled to the full and complete copy
of Ms. Haas’ report. Defendants have not proven that this document is privileged,
and have waived any privilege they had for this document by their plan to use the
investigation and report to support their defense to Plaintiff’s claims.” (Emphasis
added.) The court’s finding that the city’s “plan to use the investigation and report
to support their defense” waived the privilege is inconsistent with the law discussed
above. The city did not plan to use the redacted portion of the report. The district
court also did not employ an appropriate relevancy determination in its in camera
review as discussed above. On our review of the district court discovery order and
our in camera review of the full report, we conclude the district court abused its
discretion in ordering production of the entire redacted portion of the report.
We are somewhat constrained in describing or setting forth contents of the
redacted portion of the Haas report, since to do so would potentially disclose
privileged information. In the Haas report the produced first page states:
I was retained by the City of Marion, Iowa (“City”) to conduct a legally privileged investigation into the City’s Police Department (“Department”). The scope of this investigation included: (1) an internal harassment complaint lodged by an employee of the Department against Deputy Chief Doug Slagle; and (2) a reported concern that members of the Department[’s] management were treating employees differently on the basis of sex. 16
Attorney Haas submitted to the city one report on both phases of her investigation.
The results of the investigation could well have been divided into two separate
reports. But redaction seems like a reasonable way of severing the two
investigations.
Haas’ investigation into the city police department’s possible disparate
treatment on the basis of sex is unrelated to Rheeder’s claims of sexual
harassment by Slagle. There are a few relatively small references in the redacted
information where there is mention of what would be Slagle’s alleged sexual
harassment of Rheeder. The first is found at section 2.,c.,i., the first two sentences.
The second is in the same section, the first two sentences of the third paragraph.
The third is found in the first full paragraph of section 2.,c.,vi., on page 33 of the
Haas report. Under Fenceroy, we find these three specific portions appear to be
relevant and necessary for Rheeder to challenge the adequacy and
reasonableness of the investigation, or for the trier of fact to evaluate the adequacy
and reasonableness of the investigation. Therefore, there is an implied waiver as
to this limited information and Rheeder’s motion to compel should be granted in
this regard.
Also, the city redacted the names and positions listed in Appendix A, page
35 of the Haas report. On page 1 already produced, under “Summary of
investigative work,” Haas wrote: “In the course of this investigation, I interviewed
seventeen individuals listed in Appendix A. I interviewed some of these individuals 17
more than once.”7 Appendix A does not specify which individuals listed were
interviewed in connection with Rheeder’s sexual harassment claim or the disparate
treatment investigation. We find that since certain witnesses on the list were
interviewed concerning Rheeder’s sexual harassment claim, and are relevant and
may well be necessary for her to challenge the adequacy and reasonableness of
the investigation, or for the trier of fact to evaluate the adequacy and
reasonableness of the investigation, those witnesses are relevant and subject to
discovery. The city is obligated to disclose those particular names and positions
from Appendix A interviewed regarding Rheeder’s claim. Based upon our own in
camera review, we find the remainder of the redacted portion of the report should
remain privileged and not subject to production as it is not related to Rheeder’s
claims and is not relevant under the standard discussed above.
As discussed in Fenceroy, once the city is informed of this ruling and the
required disclosure, it has the right to withdraw the reliance on the report to support
the Faragher-Ellerth affirmative defense and avoid production. 908 N.W.2d at 242.
Upon remand, the district court is to issue an order consistent with this opinion and
then, if the city requests to withdraw reliance on the Haas report, the court will need
to make a record consistent with Fenceroy.
C. Relevance, confusion of issues, and undue prejudice
The city, invoking Iowa Rule of Evidence 5.403, argues that the redacted
portion of the investigative report should be privileged from discovery because its
7The city has already disclosed this information on page one of the portion of the Haas report produced to Rheeder as part of discovery under the stipulated protective order. 18
revelation would unduly prejudice the defendants and confuse the issues before
the court. The city further avers that discovery of the document will disrupt the
lives of third parties who may find themselves involved in an unwanted lawsuit.
Rheeder responds that the city’s evidentiary objections are not appropriate in the
context of discovery. We agree. The question before the court was not whether
the evidence was admissible at trial, but subject to the implied waiver and
discoverable. As discussed above, to be discoverable, it must be non-privileged
and relevant. Iowa R. Civ. P. 1.504. And “[i]t is not ground for objection that the
information sought will be inadmissible at trial” as long as the information “appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. We
conclude the limited further disclosure of the redacted portion of the report will not
unduly prejudice the city or confuse the issues.
D. Third-party entanglement
The city finally argues that revealing the redacted portion of the report will
drag unwilling third parties into the light, exposing them to unwanted public scrutiny
and making them parties to an undesirable legal process. In order for an issue to
receive appellate review it must be raised before, and decided by, the district court.
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). When a district court fails
to rule on an issue properly raised the raising party must file a motion requesting
a ruling in order to preserve error for appeal. Id. The district court must explicitly
rule on the issue to be appealed, passing reference to similar topics is insufficient.
See Addison Ins. Co. v. Knight, Hoppe, Kurnik & Knight, L.L.C., 734 N.W.2d 473,
480 (Iowa 2007). However, the rule is not formalistic; if the court’s ruling indicates
that the court considered the issue and ruled on it, even if the logic is not clear, 19
error is preserved. Lamasters, 821 N.W.2d 856, 864. This system gives the district
court the opportunity to correct potential errors and prevents novel arguments from
being raised on appeal. In the instant case the city admits in its brief that the district
court did not address the argument about third party entanglement. As such, error
was not preserved.
IV. CONCLUSION.
We find the district court abused its discretion when it ordered the entire
redacted portion of the confidential report to be produced. We find on our in
camera review that a limited portion within the redaction is subject to discovery by
Rheeder consistent with this opinion and that the district court is directed to issue
such order on remand.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.